To Invoke or Not to Invoke: That is the Question

To Invoke or Not to Invoke: That is the Question

By Robert C. Phillips
DDA; Retired

            Perhaps influenced by television’s often perverted cop-show portrayals of the typical custodial interrogation situation, it is easy to forget the United States Supreme Court’s invariably unforgiving requirement that whenever an in-custody criminal suspect indicates in any manner that he wishes to remain silent, an interrogation must cease, “scrupulously honoring” the suspect’s right to remain silent.[1]  Similarly, should that same suspect state that he wants the assistance of an attorney, no more questioning is permitted until an attorney is provided.[2] 

Frequently, the problem is how to interpret the suspect’s often poorly expressed attempt to invoke, weighing indecipherable expressions of uncertainty.  Two recent Ninth Circuit Appellate Court cases provide some guidance on this issue.  And although perhaps stricter than what California Courts might hold, and in fact did so here, both cases are well worth the time to review.

In Garcia v. Long, [3] sixteen year-old Jane Doe reported that her step-grandfather, Francisco Garcia, had been molesting her since she was six or seven years old.  The reported molestations consisted of her being forced to perform oral sex on Garcia some ten to fifteen times per month, and sexual intercourse once or twice a year.  As a result, detectives with the Moreno Valley Police Department brought Garcia into the police station for questioning.[4]  ....

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